The Supreme Court is in the news these days, handing down decisions left and right —if you’ll excuse the expression. And both main stream and social media are breathless with their exclamations. One day the justices are “gutting” the Voting Rights Act and the howls of indignation go up. The next it would seem The Nine have made gay marriage the law of the land. Break out the the glitter and champagne and oh-so-tastefully decorated cake.
I’m thinking a little closer and more skeptical scrutiny might give rise to a little less outrage on the one count and a little less exaltation on the other.

I just recently finished reading”The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction” by Charles Lane —harrowing stuff —the history is of an episode of brutal racial and political violence that, together with the court actions that followed it, signaled the basic collapse of Reconstruction in the South. In his narrative Lane points specifically to two landmark Supreme Court decisions that served to usher in and assure that collapse and I’m thinking their example might be instructive as we regard the current day. The first of these, The Slaughterhouse Cases involved a group of New Orleans butchers who found themselves compelled by state law to trade with a slaughterhouse that had been sited and licensed with an eye to protecting the public health, so said the state anyway. The butchers argued it was only carpet bagger crony capitalism run amuck. Thereto the Mississippi River had served as the open gutter for offal in much more of a free market arrangement. The butchers contended that, public health be damned, the state was compelling trade with state sanctioned monopoly. The appeal they took all the way to the highest court argued that the state was infringing upon the “privileges and immunities” due all free citizens —in this instance their right of free trade. They pointed to the newly minted Fourteenth Amendment of The Constitution and its guarantee of protection for those privileges and immunities. Though the amendment had been written with the rights of newly freed slaves in mind, its protections rightly should extend to all citizens, black and white, former slave and master alike—so went the argument of New Orleans’ friendly neighborhood butchers anyway.
The Supreme Court didn’t buy the argument. As it turned out, the justices deemed dumping slaughter refuse into the river upstream of your neighbor’s favorite fishing spot was not a right the U.S. Constitution, even as it was freshly amended, was meant to protect. Looking back across the years who would complain about the state’s protection of public health standing up to Constitutional challenge? Am I right? One can well imagine applause from civic minded back in the day. But it was the logic the court announced in coming to its decision that would have the devastating effect upon Reconstruction and the cause of Civil Rights.
Justice Samuel Freeman Miller writing for the majority noted “there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.” The Federal Courts could not intervene in matters of state citizenship and could only act to protect specifically enumerated federal rights. As Jack Beatty put it, in his own brilliant and depressing history of the era, “Age of Betrayal: The Triumph of Money in America, 1865-1900,” these rights included “access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas… they did not include what we call ‘civil rights.’”
This reining in of supposed federal over reach would not go unnoticed. The federal prosecution of The Colfax Massacre would meet it head on.
The bloody violence and atrocity that occurred of an Easter Sunday in Colfax, Louisiana in 1873 had been in essence an open battle over who would hold the seat of local law enforcement. White Supremacist vigilantes and free blacks had each laid their claim. It was the Colfax Courthouse that had been burned to the ground, those defending it who had been murdered. Citing The Slaughterhouse Cases as precedent, the Supreme Court would hold that the mass murder at issue was not a matter for federal prosecution and jurisdiction, but a matter for those local courts, those same local courts now in the hands of the criminals. In essence, to the victors had gone the spoils.
Justice Stephen J. Field, a dissenting justice in the 5-4 Slaughterhouse decision, would later write that Miller’s opinion and the unhealthy precedent it had set for cases like the Colfax massacre had effectively rendered the Fourteenth Amendment a “vain and idle enactment.” The collapse of Reconstruction and the birth of Jim Crow would follow to prove his point.
I’m put in mind of this history as the various parties curse or applaud the blatant aspects of these recent Supreme Court decisions. First let’s look at the rulings on marriage rights. Yes, DOMA was struck down, but reading the logic of the opinion once again you find the justices proffering that notion of distinct citizenships, state and federal. The court found that the federal government had no basis for curtailing rights that states had granted. This may have been an apparently pleasing result for advocates of marriage equality, but the decision most decidedly did not affirm same sex marriage as a federally protected civil right. Where the court might have done exactly that, the matter of California’s Proposition 8, the justices instead demurred. They found the appellants had no standing before the court as aggrieved parties. The practical effect was to throw out their appeal and leave lower court rulings uncontested, as the California constitutional officers had chosen not to contest them. While I can applaud the progress made —or not unmade— on marriage rights, I am left with this disquiet. I fear the justices stopped short of a ruling that would set a clear path for marriage equality even in states where the notion is less than popular. There is an important difference between civil rights and popular rights.
With the ruling —or the non-ruling— on California’s Prop 8, I am left wondering if the victory being celebrated isn’t a hollow one. The appellants were told they had no standing as private citizens to appeal on behalf of their state’s constitutionally enacted law. The state’s constitutional officers had elected not to appeal—that was that. The practical effect in this particular case may be laudable, but is it so hard to imagine a case where a governor and a state attorney general act or fail to act counter to the people’s rights and interests? Where this case might serve as a less than healthy precedent? Reading history, I think not.
Just as I fear some of the cheering for the court’s rulings on marriage rights may be over loud, I also believe at least some of the anguish being expressed over the Voting Rights Act may be somewhat overstated. At the very least it is in the power of the American people to find a silver lining in this dark cloud of an opinion.
The VRA, passed nearly fifty years ago, can really be seen as something of an answer to the abuses and injustices that the Slaughter House Cases and The Colfax Case had so unfortunately enabled. States where the notion of state sovereignty had taken on the aspect of a white hood and a burning cross were confronted with federal law actively affirming —and enabled to enforce— the constitutional rights of citizenship —not the least of these, voting rights
“Pre-clearance” was the issue at point in the recent Roberts’ Court decision. Particular states where past abuses had been most egregious were singled out for special requirements of the law. Any change to voting requirements or accommodations had first to be cleared with the U.S. Justice Department. In striking down the pre-clearance requirements justice Roberts cited the last fifty years of progress over the prior hundred in abuse. With the law in place and working so effectively it seemed we no longer needed it. We have a New South, “(n)early 50 years later, things have changed dramatically.” he said and the special scrutiny upon those singled out states was no longer equitable.
Justice Ginzberg compared the reasoning to abandoning an umbrella in a rainstorm —inasmuch as under the umbrella you’re dry.
Don’t get me wrong, there is plenty to be validly indignant about in the VRA decision of The Roberts Court. The same guys who profess that they are mere umpires calling balls and strikes for the lawmakers who define the batters box seem to have no problem with the fact that their discerning judgement on historical progress on civil rights in The South is counter to the opinion Congress had in renewing the pre-clearance provisions of the VRA as recently as 2006. But, just as what they didn’t say bothers me with the marriage rights cases, here I take heart in what they did not strike down. For optimists and pessimists alike there is still something pretty important left in the cup. The court did not declare the entirety of the VRA unconstitutional, only the pre-clearance requirements as they were applied to some states and not all. As I think about that more and more, I take some comfort. The court did not say there is no place for federal oversight in Birmingham, Alabama or Colfax, Louisiana. It said there should be no more or less of that federal oversight and state accountability there than there ought to be right here in Boston, Massachusetts or outside Cleveland, Ohio. Thinking of our own Tom Finneran, I have to admit I’m almost okay with that.
It seems to me the court has left a decision to us in this case. It is up to us what we make of their opinions. Already, we’re seeing states, where VRA Justice Department actions had previously counter ordered redistricting plans that disadvantage minority voters, dusting off the same old maps, testing the new/old limits of decency and democracy. It remains to be seen how the Obama Administration Justice Department will respond. We, the people can respond though, with a clear call for law and enforcement that protects the rights of every voter in every corner of this country. We can choose to wring our hands and see The VRA as “gutted” and rendered toothless. Or we can choose to see voting rights as a common cause for the entire country.
So it is I find myself urging against resigned despair on the one hand and cautioning against easy early celebration on the other. With marriage equality, just as it is with voting rights, it seems there’s some American history yet to be written.